Gillingham argues that under Rule 40(d)(1)(F), if a new trial is ordered by a trial court after a trial has already been held, a party has a right to file a motion for disqualification without cause within 21 days of the service of the order specifying who will be the presiding judge. Gillingham filed a timely motion for disqualification pursuant to Rules 40(d)(1), 41(d)(5) and Jahnke v. Moore, 112 Idaho 944, 737 P.2d 465 (Ct.App. 1987). Gillingham argues the district court improperly denied its motion for disqualification and had no authority to act on the request for attorney fees. Gillingham asks that the order for attorney fees be held void.

Peremptory challenges are mechanisms designed "to insure a fair tribunal by allowing a party to disqualify a judge thought to be unfair or biased." Jahnke v. Moore, 737 P.2d 465, 467 (Idaho Ct.App. 1987). A movant may be said to properly take advantage of a peremptory challenge when the litigant "is concerned that the judge may be biased or unfair for some real or imagined reason."

The purpose of the rule permitting disqualification of a judge without cause is "to insure a fair tribunal by allowing a party to disqualify a judge thought to be unfair or biased." Jahnke v. Moore, 112 Idaho 944, 946, 737 P.2d 465, 467 (Ct.App. 1987). A party who believes that the assigned judge may be biased or harbor animosity toward the party or counsel may obtain disqualification without the proof that would be necessary to disqualify the judge for cause.

On remand, the parties had agreed to submit the merits of this case without further evidence but upon additional briefing. This case is distinguishable from Jahnke v. Moore, 112 Idaho 944, 737 P.2d 465 (Ct.App. 1987), cited by Alumet. There we held that a right to disqualification without cause may exist after a remand if the case is set for trial peremptorily, before the parties and their counsel have enjoyed an opportunity to make meaningful decisions on whether to accept or reject the judge likely to hear the case.